McLauchlan v Egan - [2025] WASC 342

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   MCLAUCHLAN -v- EGAN [2025] WASC 342
CORAM:   GETHING J
HEARD:   ON THE PAPERS
DELIVERED          :   22 AUGUST 2025
FILE NO/S:   CIV 1907 of 2025
BETWEEN:   ELIZABETH GRACE MCLAUCHLAN
Plaintiff
AND
LUKE HEINSEN EGAN as executor of the will of LEONIE MARIA HEINSEN
First Defendant
MATTHEW HEINSEN EGAN as executor of the will of LEONIE MARIA HEINSEN
Second Defendant
LUKE HEINSEN EGAN as beneficiary of the estate of LEONIE MARIA HEINSEN
Third Defendant
MATTHEW HEINSEN EGAN as beneficiary of the estate of LEONIE MARIA HEINSEN
Fourth Defendant

Catchwords:

Family provisions and maintenance - Application by de facto - Whether deceased made adequate provision for the proper maintenance of her de facto by her will - Negotiated outcome reached between parties

Legislation:

Family Provision Act 1972 (WA) s 6(1)

Result:

Orders made for further provision from the estate of the deceased to the plaintiff in terms of memorandum of consent orders filed on 15 August 2025

Category: B

Representation:

Counsel:

Plaintiff	:	No appearance
First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	No appearance
Fourth Defendant	:	No appearance

Solicitors:

Plaintiff	:	Culshaw Miller Lawyers
First Defendant	:	GC Lawyers
Second Defendant	:	GC Lawyers
Third Defendant	:	GC Lawyers
Fourth Defendant	:	GC Lawyers

Case(s) referred to in decision(s):

Abrahams (By His Litigation Guardian Public Trustee of Queensland) v Abrahams [2015] QCA 286
Butler v Britt Helen Butler as executrix of the estate of Colin Armitage Butler [2025] WASC 181
Hill v Jennifer Patricia Murray as beneficiary of the estate of Alec Kumar Sodhy [2023] WASC 482
Hodder v Australia Executor Trustees Ltd as administrator of the estate of Reece William Hodder [No 2] [2021] WASC 415
Keremestevski v Shaun McLeod (as executor of the estate of Mark Adrian Mcleod) [2024] WASCA 12
McLauchlan v Egan [2025] WASC 321
Musasghi v Gebremariam [2022] WASCA 37
Schaechtele v Otto Wilhelm Schaechtele as Executor of the Will of Maria Regina Grundner‑Schaechtele [2008] WASC 148

GETHING J:

Introduction

By application filed 12 August 2025, the plaintiff, Elizabeth McLauchlan (Plaintiff) seeks further provision from the estate of the late Leonie Maria Heinsen (Deceased) pursuant to Family Provision Act 1972 (WA) (FPA) s 6(1) (Application). The Application was able to be bought pursuant to a grant of leave made by me on 11 August 2025 (Leave Application).[1] The factual background to the proceedings is set out in the Leave Decision, which I refer to without the need to repeat. I adopt the same abbreviations. As part of the Leave Decision I determined that the Plaintiff was in a de facto relationship with the Deceased immediately before her death, giving the Plaintiff standing to make an application pursuant to FPA s 6(1).[2]
[1] McLauchlan v Egan [2025] WASC 321 (Leave Decision).
[2] Leave Decision [6] - [30].
The orders made on 11 August 2025 were made in terms…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McLauchlan v Egan

Details

AGLC: McLauchlan v Egan [2025] WASC 342
Case: [2025] WASC 342
Decision Date: 22 AUGUST 2025

CaseChat Overview and Summary

McLauchlan v Egan is a case concerning a dispute over family provisions and maintenance, specifically whether the deceased had made adequate provision for her de facto partner's proper maintenance through her will. The case was heard in the Supreme Court of Western Australia. The Plaintiff, McLauchlan, sought to have the court amend the deceased's will to provide for her proper maintenance, arguing that the provisions made in the will were inadequate.

The central legal issue was whether the deceased had made adequate provision for McLauchlan's proper maintenance, support, education, or advancement in life. The court had to assess the adequacy of the provisions in the will, taking into account McLauchlan's financial situation, her needs, and the deceased's estate. The court also had to determine whether the onus was on McLauchlan to prove, on the balance of probabilities, that the will did not make adequate provision for her maintenance.

The court found that McLauchlan had not discharged the onus of proving that the deceased's will did not make adequate provision for her proper maintenance. The court considered McLauchlan's financial situation, including her income, assets, and liabilities, as well as her health and carer responsibilities. The court noted that McLauchlan's assets, including her share in the Margaret River property, were significant, and that she had not demonstrated that she could not meet her needs from her existing assets. The court also found that the will had made reasonable provision for McLauchlan by including her as a residuary beneficiary in the event that both of the deceased's sons predeceased her.

As a result of the court's findings, McLauchlan's application for variation of the will was dismissed. The court held that the deceased had made adequate provision for McLauchlan's proper maintenance, and that there was no need to exercise its discretion under section 6 of the Family Provision Act. The court's decision was based on the evidence presented and the principles relating to the exercise of the court's discretion in family provision cases.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The power in FPA s 6(1) is enlivened if the court is of the opinion that the disposition of the Deceased's estate effected by the Will is not such as to make adequate provision from her estate for the proper maintenance, support, education or advancement in life of the Plaintiff. I summarised the principles relating to the exercise of this power in the Leave Decision, which I adopt.[5][5] Leave Decision [46] - [47]. The onus is on the Plaintiff to satisfy the court on the balance of probabilities that the disposition of the Deceased's estate to her was not such as to make adequate provision for her proper maintenance, support, education or advancement in life.[6] [6] Keremestevski v Shaun McLeod (as executor of the estate of Mark Adrian Mcleod) [2024] WASCA 12 [45] (judgment of the court); Musasghi v Gebremariam[2022] WASCA 37 [106] - [107] (judgment of the court); Hill v Jennifer Patricia Murray as beneficiary of the estate of Alec Kumar Sodhy [2023] WASC 482 [111] (Seward J). At the time of the death of the Deceased, the Plaintiff was 53 years old. She was a drug and alcohol worker at WACHS with a net fortnightly income of $993.98. She had another source of income, being rental income from the Margaret River Property in the order of $100 per fortnight. Her expenditure then exceeded her income by about $700 per fortnight, though this was due to her on carers leave to look after the Deceased. The Plaintiff's assets had a total value of about $280,000. Her assets included her 1/3 interest in the Margaret River Property (leased out since 2000) and her purchased leasehold interest in 89 Gunners Lane. The Plaintiff suffers from physical ailments, including incomplete quadriplegia from a car accident in 1983 and suffers from chronic pain. She requires a second knee replacement but is unable to afford it. Her mental health has significantly deteriorated since the Deceased's death and she was recently diagnosed with a major depressive disorder. This has limited the Plaintiff's earning capacity as she is only able to work 0.8 FTE. She wishes to retire to the Margaret River region which was her plan with the Deceased. Upon selling her interest in 89 Gunners Lane ($159,000), she would be unable to afford to purchase a property given her superannuation balance ($125,000), outstanding loan liabilities (roughly $155,000) and the fact that she is currently 61 years of age and looking to retire in three to five years. The only clause in the Will benefitting the Plaintiff was cl 3, which reads:[7]3.I GIVE DEVISE AND BEQUEATH my one eighth undivided share in the property Lot 9017 on Plan 201655 and known as site 5 Meerup Multiple Occupancy, Northcliffe aforesaid to be shared equally between JOYE MADDISON and ELIZABETH GRACE McLAUCHLAN as tenants in common in equal shares in the event that. I am survived by one or both of my sons.[7] First McLauchlan Affidavit, page 29. In cl 4, the Plaintiff was a residuary beneficiary in the event that both Luke and Matthew predeceased her. This did not occur. Had it occurred, then by cl 4(a), the Plaintiff would have received the two thirds interest of the Deceased in the Margaret River Property.

Ratio Decidendi

Legal Principle Established

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